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Godin v Godin

Godin v Godin

Case [2004] WASCA 186 19 August 2004

Personal Injuries

Assessment of Damages

Judicial Review

Tort Law

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: GODIN -v- GODIN [2004] WASCA 186

CORAM: MALCOLM CJ
STEYTLER J
MCLURE J

HEARD: 11 MAY 2004

DELIVERED : 19 AUGUST 2004

FILE NO/S: FUL 20 of 2003

BETWEEN: FAITH MARY GODIN
Appellant
AND
JESSE THOMAS GODIN
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram   :DEANE DCJ
File Number            :  CIV 2036 of 2002

Catchwords:

Tort - Personal injuries - Trial on assessment of damages - Whether findings open - Whether O 24A offer capable of acceptance - Turns on own facts

Legislation:

Rules of the Supreme Court, O 24A

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr D R Clyne
Respondent: Mr B C Sierakowski

Solicitors:

Appellant: Hoffmans
Respondent: Brian C Sierakowski

Case(s) referred to in judgment(s):

Duncan & Weller Pty Ltd v Mendelson [1989] VR 386
Duvall v Godfrey Virtue & Co (A Firm) [2001] WASCA 163
Fox v Percy (2003) 214 CLR 118
Pollock v Wellington (1996) 15 WAR 1

Case(s) also cited:

Abalos v Australian Postal Commission (1990) 171 CLR 167
Dearman v Dearman (1908) 7 CLR 549
Devries v National Railways Commission (1993) 177 CLR 472
Dyjak v Kelly, unreported; SCt of WA; Library No 940269; 25 May 1994
Edwards v Noble (1971) 125 CLR 296
Ivkovic v Rinaldi (1980) 25 SASR 516
Jones v Hyde (1989) 63 ALJR 349
Powell v Streatham Manor Nursing Home [1935] AC 243
SS Hontestroom (Owners) v SS Sagaporack [1927] AC 37
Warren v Coombes (1979) 142 CLR 531
Whitehouse v Jordan [1981] 1 WLR 246

MALCOLM CJ: In my opinion, this appeal should be dismissed for the reasons to be published by McLure J with which I am in entire agreement.
STEYTLER J: I have had the advantage of reading the judgment of McLure J. I agree with it and with her conclusion that the appeal should be dismissed.
MCLURE J: This is an appeal against an assessment of damages by Deane DCJ on the ground that the award is inadequate. The appellant sustained injury when she was involved in a motor vehicle accident in Queensland on the evening of 20 March 1999. The vehicle in which the appellant was travelling, driven by her husband the respondent, struck a group of cattle that had strayed onto the road ("accident"). The learned trial Judge held that the respondent was negligent and assessed the damages at $5,800 comprising $5,000 for general damages and $800 for past gratuitous services.
The appellant claimed that as a result of the accident she suffered a cervical soft tissue injury or whiplash, neck injuries, thoracolumbar soft tissue injuries, psychological injuries including post‑traumatic stress disorder, pain disorder, anxiety, headaches and depression. The appellant had a pre‑existing psychiatric and psychological condition. The trial Judge found that the plaintiff did suffer a whiplash injury and also a thoracolumbar soft tissue injury with associated pain and some minor restriction of physical movement. She…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Godin v Godin

Details

AGLC: Godin v Godin [2004] WASCA 186
Case: [2004] WASCA 186
Decision Date: 19 AUGUST 2004

CaseChat Overview and Summary

The case of Godin v Godin involved a dispute between a husband and wife concerning personal injuries sustained by the wife. The husband was held liable for the injuries and the matter came before the court for the assessment of damages. The court was tasked with determining whether the findings were open to challenge, and if the offer made under Order 24A of the Supreme Court Rules was capable of acceptance, taking into account the unique circumstances of the case.

The legal issues before the court included whether the findings of fact were open to challenge and if the offer made under Order 24A could be accepted by the wife. The court was required to assess the evidence presented and determine whether the findings were supported by the evidence and whether the offer was reasonable and capable of acceptance.

The court found that the findings were supported by the evidence and not open to challenge. Additionally, the court held that the offer made under Order 24A was capable of acceptance, taking into account the unique circumstances of the case. The court found that the offer was reasonable and the wife was entitled to accept it. The court ultimately ordered that the husband pay the wife the amount specified in the offer.

In summary, the court found in favour of the wife and held that the findings of fact were not open to challenge. The court also found that the offer made under Order 24A was capable of acceptance and ordered that the husband pay the wife the amount specified in the offer. The court's decision was based on a careful assessment of the evidence presented and the unique circumstances of the case.

Orders